No. 01-07-00264-CR
May 8, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 338th District Court Harris County, Texas, Trial Court Cause No. 1079889.
Panel consists of Chief Justice RADACK and Justices JENNINGS and BLAND.
SHERRY RADACK, Chief Justice.
A jury convicted appellant, Jose Adan Rodriguez, of possession with intent to deliver at least 400 grams of cocaine. The trial court assessed punishment at 30 years' confinement and a $25,000 fine. In his sole point of error, appellant contends that the evidence was factually insufficient to support the judgment. We affirm.
BACKGROUND
Officer J. Garza is a 30-year verteran of the Houston Police Department who has spent approximately 15 years working in the Narcotics Division. Garza typically works as an undercover agent, obtaining information of large drug sales from a confidential informant. In this case, a confidential informant introduced Garza to Chuy Espino. Garza told Espino that he wanted to buy a kilogram of cocaine. On August 9, 2006, a few days after the initial meeting with Espino, Garza met with the informant and Espino outside a warehouse. Espino brought Garza inside and introduced him to appellant and Naftali Navarette. Espino left the warehouse, and Garza began to talk to Navarette about the drug deal. Appellant was sitting nearby on a sofa. Navarette told appellant to show "the stuff" to Garza. Garza saw two kilogram-sized bricks in the bag. Appellant cut open one of the bricks and allowed Garza to examine it. Garza recognized "the stuff" as cocaine and signaled to other officers nearby. The officers came in, arrested appellant and Navarette, and seized the cocaine. The cocaine packages were submitted for fingerprint processing, but the results were inconclusive. The crime lab determined that the packages contained 1.9 kilograms of cocaine. Garza did not record the drug deal because his recording equipment had malfunctioned. During trial, Garza read from his offense report to refresh his memory about what he had seen and heard during the drug deal. Navarette, who was tried with appellant, testified that he did not know appellant, and that he, Navarette, was waiting at the warehouse to give Espino a ride home because Espino was selling a car to Garza. Navarette testified that he saw Espino and Garza looking at the cocaine in the bag. Navarette denied participating in the drug deal. Navarette testified that appellant was sitting on a couch drinking a beer. Navarette also testified that he never saw appellant talk to Garza, handle the black bag, or touch any cocaine. During direct examination, Navarette testified that he went to the Espino's shop to make payments for a car he bought from Espino, but during cross examination, Navarette changed his testimony, stating that he went to see Espino to get a paint job estimate for his car. Appellant presented no evidence, and the jury convicted both appellant and Navarette of possession of cocaine with intent to deliver. FACTUAL SUFFICIENCY
In his sole point of error, appellant contends that the evidence was factually insufficient to prove beyond a reasonable doubt that he was guilty of possession with intent to deliver at least 400 grams of cocaine. To prove appellant's guilt, the State introduced evidence that was centered on Garza's testimony. Appellant argues that there was no corroborating evidence of Garza's testimony, such as appellant's fingerprints on the drugs or recordings of the transaction. Appellant claims that Garza's testimony was too weak to meet the State's burden of proof. Standard of Review
In a factual sufficiency review, we view all the evidence, both for and against the finding, in a neutral light, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S .W.3d 404, 414-15 (Tex.Crim.App. 2006). "It is in the very nature of a factual-sufficiency review that it authorizes an appellate court, albeit to a very limited degree, to act in the capacity of a so-called `thirteenth juror'." Id. at 416-17. However, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Id. at 417. Nor can we declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. We note that a jury is in the best position to evaluate the credibility of witnesses, and we afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Appellant challenges only the factual sufficiency of the evidence, and effectively concedes that the evidence is legally sufficient to sustain his conviction. Patterson v. State, 96 S.W.3d 427, 434 n. 8 (Tex.App.-Austin 2002), aff'd, 152 S.W.3d 88 (Tex.Crim.App. 2004). To establish possession, there must be evidence, either direct or circumstantial, that the accused exercised actual care, custody, control, or management over the contraband. See Tex. Health Safety Code Ann. § 481.002(38) (Vernon Supp. 2007). The State can use circumstantial evidence to show that the defendant had the requisite intent to deliver. Mack v. State, 859 S.W.2d 526, 528 (Tex.App.-Houston [1st Dist.] 1994, no pet.); Williams v. State, 902 S.W.2d 505, 507 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd). Appellant argues that his conviction was based solely on Garza's testimony, which was too weak because the State lacked corroborating evidence. Appellant claims that there was no scientific evidence to link him to the crime. In support of his claim that the evidence was factually insufficient, appellant relies on Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). In Johnson, the witness, a sexual assault victim, testified that she "believed" that she saw her attacker's face during the assault. Id. at 5. When she was asked at trial whether she could identify the defendant as her attacker, she said, "I cannot tell a hundred percent that it is him, but I am positive." Id. She testified that she could not be "a hundred percent positive" because it was dark, she was blindfolded, and the defendant wore a mask during the assault. Id. There was also evidence that the witness had given conflicting descriptions of her attacker. Id. at 6. The court of appeals held that the State presented factually insufficient evidence because the witness's in-court identification was too weak to meet the State's burden on the element of identity. Id. at 10. The Court of Criminal Appeals affirmed the court of appeals' decision to reverse on factual sufficiency grounds. Id. at 12. In this case, however, there is nothing equivocal about Garza's testimony. While it is true that Garza first testified that Navarrete, not appellant, cut open the cocaine, after refreshing his memory with his offense report, Garza testified that appellant, in fact, opened the cocaine. Garza never wavered in his testimony on this issue after refreshing his memory. Additionally, Garza's testimony on this issue was a detail, not an element of the offense, as in Johnson. Even if Navarrete had opened the cocaine, there was other evidence showing that appellant was a party to the offense. Garza consistently identified appellant as the man who was "bear hugging" the bag containing the cocaine. Unlike Johnson, the State's evidence, through Garza's testimony, was not "too weak" to show that appellant was guilty of the charged offense. The evidence viewed in a neutral light does not show how the verdict seems "clearly wrong and manifestly unjust." Garza testified that appellant was present when Garza and Navarrete discussed the price of the cocaine. Appellant was "bear hugging" the bag containing the cocaine. At Navarette's instruction, appellant opened the bag, showed Garza the two kilogram-sized bricks of cocaine, and then cut open one of the bricks of cocaine. Although Garza initially identified Navarette, not appellant, as the person who opened the cocaine, and Navarette testified that neither he nor appellant participated in the sale of the cocaine, the jury was entitled to believe Garza and disbelieve Navarette. See Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App. 1998). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex.Crim.App. 1995). There is no requirement that the State corroborate Garza's testimony to render the evidence factually sufficient. See Davis v. State, 831 S.W.2d 839, 842 (Tex.App.-Dallas 1992, pet. ref'd) (holding that testimony of single witness can be sufficient to support conviction). Accordingly, we overrule appellant's sole point of error. CONCLUSION
We affirm the judgment.